EU: Draft regulation on public access
01 November 1999
The European Comission's draft regulation on public access to documents was "leaked" to Statewatch before being considered by the full meeting of Commisioners who are expected to discuss it in January.
Under Article 255 of the Amsterdam Treaty the Commission was charged with drawing up a draft regulation governing the public's "right of access" to documents from the Council, the Commission and the European Parliament. The draft regulation has to be adopted, by co-decision, within two years of the Amsterdam Treaty coming into effect (by the summer of 2001).
The regulation, and subsequent rules of procedures to be drawn up by the three institutions, would replace (and have the force of community law) the Council decision of 20.12.93 (93/731/EC), the code of conduct concerning public access to Council and Commission documents (6.12.93), and the subsequent rules of access adopted by the European Parliament.
Article 1 of the draft regulation says that the "Scope of application" instead of setting out the right of access sets out instead all the documents to be permanently excluded from the right of access. Under the present 1993 Decision (Council) "the public shall have access to Council documents" (Article 1.1). There currently are no exceptions as to which documents the public can apply for (the request may be refused under the present specific and limited rules under Article 4 and the applicant has the right of appeal). This Article sets out a whole range of exceptions which the public cannot even apply for. The documents to be permanently excluded from the right of access cover the majority of documents produced by the institutions and include: a. working documents including those produced under the umbrella of the officials' "freedom of thought" and discussion papers (Article 1.2); b. "other working papers" including all reports/documents leading up to a policy decision or report on practice. The wording here might seem ambiguous, it says these "working papers" will not be accessible "until the taking of the formal decision".
This could mean that such documents would become available at the point of the final decision or after the final decision. The actual intent however is set out in the unpublished "communication" by the Commission. This says:
"an embargo could be imposed.. to delay access to certain documents to avoid any interference in the decision-making process and to prevent premature publication of documents from giving rise to "misunderstandings" or jeopardising the interests of the institution (eg: granting access to preparatory documents only after the formal adoption of a decision)." (Discussion paper on public access to documents 23 April 1999, Commission) This would completely exclude civil society from playing any part in the decision-making process.
Having excluded most documents from the right of access Article 4 then greatly extends the current exceptions from access in the 1993 Decision. Documents may be refused, in addition to the present restrictions, to those documents which could "endanger the protection of the public interest" where they concern "defence", "relations between member states or the institutions and organs of the community or the outside community" and the "stability of the Community legal order". And, in a catch-all conclusion under "public interest" says this includes "preparatory measures".
Article 7 gives discretion to officials, by finding an "amicable solution", where applicants make "repeated requests", after consulting them - in practice applicants are rarely "consulted", the institution makes a decision against which the applicant has to appeal. Article 8 would introduce an entirely new restriction on freedom of information, not in the current 1993 Decision, forbidding applicants from "reproducing" documents. Such a provision has no place in democratic society and displays the authoritarian instincts of the officials in the institutions. Article 1